Last Tuesday, the US Supreme Court began considering a California prison policy that calls for segregating all inmates by race for 60 days when they first arrive in the system or are transferred to a new prison once in the system. The 9th Circuit upheld the policy as necessary to prevent gang-related violence in the prison system. At oral argument in Johnson v. California, Justice John Paul Stevens questioned this rationale, asking whether the policy may even have the reverse effect of increasing gang-violence by facilitating close contact among inmates of the same race, perhaps establishing new gang relationships that previously didn't exist.

Garrison S. Johnson, the inmate who brought the lawsuit, is an African American man who chose not to join a prison gang, and he has no record of ever being involved in interracial violence. Mr. Johnson was imprisoned in 1987 and has been transferred five times, thus enduring six periods of segregation. Consequently, he argues, he has never been able to seek support across racial lines.

The Bush administration entered the case on Mr. Johnson's behalf to argue that segregation by race should always be regarded as presumptively unconstitutional and subject to "strict scrutiny" such that a policy will be upheld only if it's narrowly tailored to achieve a "compelling" government interest. This is the position, of course, that Johnson's lawyer is arguing as well.

The United States Court of Appeals for the Ninth Circuit, in upholding the segregation, had applied the more deferential standard that the Supreme Court has developed for evaluating choices made by prison administrators.

A federal court in Massachusetts became the first federal court in this country to rule that capital defendants must be provided separate juries at the guilt and sentencing phases of their trials. Judge Nancy Gertner held that "updated data presented by defendants in this case overwhelmingly shows
that death-qualified jurors are significantly more conviction-prone
than jurors who are not death-qualified." Thus, a defendant's right to a fair trial requires that those jurors determining guilt are not death-qualified as sentencing jurors are required to be.

In Virginia, the home of AOL, a law was enacted last year making it illegal to send unsolicited bulk e-mail that hides its origin. The law carries a maximum 15-year prison sentence. Yesterday, jurors convicted Jeremy Jaynes and Jessica DeGroot under this statute, the first individuals to be convicted in this country for the crime of "felony spam." The jury recommended a nine-year prison sentence for Jaynes.

Eric M. Freedman of Hofstra will publish the above-titled article in an upcoming issue of the Ohio State Journal of Criminal Law. The abstract to the article states:

"The revised edition of the ABA's Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases offers a lens
through which to consider whether retention of capital punishment is
sensible public policy.

A reader of the Guidelines finds that
the current death penalty system is characterized by severely impaired
clients, pervasive racism, a structural bias in favor of guilty
verdicts, less effective counsel than in non-capital cases, and a
dysfunctional system of post-conviction review.

No amount of
money can solve these problems; at best, sufficient expenditures can
ameliorate them. But making even that attempt will be costly – not just
because of the amounts spent, but because those amounts are likely to
be diverted from structural improvements that would produce tangible
benefits to the criminal justice system as a whole.

As the
states consider this situation, perhaps an unintended but welcome
effect of the Guidelines' stark portrayal of the realities confronting
them will be to prompt a re-consideration of the choice to have a death
penalty at all."

Voters adopted an initiative allowing DNA testing of all felons, not just those convicted of particular crimes. And in 2009, felony arreestees will also be subject to testing. Reuters reports that "With the approval of Prop. 69, California becomes one of three U.S. states to collect samples at arrest, and one of 34 that collects DNA samples from all convicted felons."

In other innocence news, in Canada, a person convicted of a 1959 rape-murder at age 14 and sentenced to hang, but later paroled was found to be "likely innocent" by the Justice Minister and the case referred to an appeals court.

California's Proposition 66, which would have amended California's controversial "three strikes" law, was defeated by a margin of 53% against and 47% for. Proposition 66 would have: (1) increased sentences only when the current conviction is for a specified "violent or serious offense"; (2) redefined "violent or serious offense"; and (3) changed the law such that only convictions for violent or serious offenses, brought and tried separately, would qualify as the second or third strikes. For Professor Doug Berman's ruminations on what the "strong" election night for the Republicans might mean for criminal justice policy, check out his blog by clicking here.

The latest issue of the BNA Criminal Law Reporter addresses how courts continue to struggle with their post-Blakely interpretation of the Sixth Amendment right to a jury trial. Several recent decisions "have come to different conclusions as to whether aggravating factors in noncapital sentences should be included in indictments. The U.S. District Court for the Eastern District of Pennsylvania, reasoning that indictments may allege only elements of offenses, held Oct. 8 that indictments cannot include allegations that are relevant only to sentencing. On the other hand, the U.S. District Court for the District of Nebraska Oct. 19 held that aggravating factors are elements of a separate, enhanced crime and, therefore, must be included in the indictment. Meanwhile, in the state courts, the Arizona Court of Appeals Oct. 14 held that trial courts must allow prosecutors to add allegations of aggravating factors to indictments and requests for jury trials. (United States v. Jardine, E.D. Pa., No. 04-219, 10/8/04, United States v. Benitez-Hernandez, D. Neb., No. 8:04CR317, 10/19/04, and State v. Conn (Tinnell), Ariz. Ct. App., No. 1 CA-SA 04-0180, 10/15/04).

Shortly before the local polls closed, and with the rest of the nation focused on election returns, Texas took the time to execute its 332nd inmate since it reinstituted the death penalty in 1982. Lorenzo Morris, 52, who was unable to vote under Texas Law, was executed by lethal injection at around 6 p.m. local time. Morris had been convicted in 1990 of slashing the throat of a 70-year old man in a robbery gone bad. For more, click here.

Although the dangers and risks of the widespread use of snitches in our criminal justice system have been explored to some extent, Alexandra Natapoff takes the issue to the next level by examining the deeper problems snitch-use has caused in our inner-city communities. In the abstract to her article to be published in the University of Cincinnati Law Review, Alexandra writes:

"The informant institution is . . . an under-appreciated social force in low-income, high-crime, urban communities in which a high percentage of residents - as many as fifty percent of African American males in some cities - are in contact with the criminal justice system and therefore potentially under pressure to snitch. By relying heavily on snitching, particularly in drug-related cases, law enforcement officials create large numbers of informants who remain at large in the community, engaging in criminal activities while under pressure to provide information about others. These snitches are a communal liability: they increase crime and threaten social organization, interpersonal relationships, and socio-legal norms in their home communities, even as they are tolerated or under-punished by law enforcement because they are useful.

The Article . . . hypothesizes the harms imposed by the informant institution on socially disadvantaged, high-crime communities in which snitching is common. These harms may include increased crime, the erosion of trust in interpersonal, familial and community relationships and other psychological damage created by pervasive informing, the communal loss of faith in the state, and the undermining of law-abiding norms flowing from law enforcement's rewarding of and complicity in snitch wrongdoing."

The White Collar Crime Prof Blog discusses two federal statutes that criminalize the intimidation of or interference with voters on election day. Although these statutes have apparently not been used heavily to date, they may have more relevance today. Let's hope not. Here's the post.